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IndUS Business Journal
April 15, 2008

Impending disabilities legislation to have impact on hotels BY CHRIS NELSON

SAN ANTONIO - Big changes are coming to Title III of the Americans with Disabilities Act, and to help its members prepare for the new regulations, the Asian American Hotel Owners Association held a special forum on the issue at its annual convention March 27 in San Antonio.

The U.S. Department of Justice will have the final decision on the new regulations, which the U.S. Access Board - an independent agency within the federal government that focuses on accessibility issues for disabled persons - approved in July 2004. When the Justice Department will make its decision no one knows for sure. But Carolyn Doppelt Gray, a partner at the Chicago-based law firm of Barnes & Thornburg LLP and the forum host, said that it is imperative that business owners do what they can to ensure that their facilities are in compliance with Title III, which applies to public accommodations.

"That's the thing, we're not sure what changes the government is going to make, or when, but I fully expect that we will see some new regulations," Gray, who works out of Barnes and Thornburg's Washington, D.C. office, and heads up the firm's Disability Practice Group, said. "That's why it is in the best interest of business owners - no matter what kind of business you're talking about - to prepare for these changes."

Title III applies to private entities that are open to the public. These include restaurants, hotels, theaters, retail stores and shopping centers, grocery stores, parks not owned by government entities, hospitals and doctor's offices and law offices. Under Title III, no individual may be discriminated against on the basis of disability with regard "to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

According to Gray, the Justice Department is studying a number of revisions to the ADA's accessibility guidelines, including:

 *Enhanced scoping for public entrances, van parking, passenger loading zones, stairways and telecommunication devices at pay phones for persons with hearing or speech impairments.

*New or clarifying provisions that cover access to different types of elevators (destination-oriented, limited-use/limited application and residential elevators), drinking fountains, kitchens and kitchenettes, washing machines and clothes dryers, signs, dispersed wheelchair seating, windows and residential dwelling units.

*Reduced scoping for unisex toilet rooms located at a single location and for wheelchair spaces in large assembly areas.

So why is the Justice Department tinkering with the ADA's accessibility guidelines, anyway? According to Gray, the department wants to improve property access to disabled persons, including access within the workplace; it wants to improve the format and usability of the guidelines to facilitate compliance, it wants to harmonize the guidelines with model building codes and industry standards, and ensure that the requirements for both the ADA and Architectural Barriers Act are consistent. The latter is an act passed in 1960 that requires access to facilities designed, built, altered or leased with federal funds.

The Access Board's guidelines are not binding, but instead serve as a guideline for enforceable standards that are adopted by other federal agencies. Under the ADA, the Department of Justice - and in the case of transit facilities, the Department of Transportation - are responsible for enforceable standards based on the Access Board's guidelines. These agencies are planning to update their ADA standards based on the Access Board's new guidelines.

Several other agencies, including the General Services Administration, the Department of Defense, the Department of Housing and Urban Development and the U.S. Postal Service are also responsible for developing standards used to enforce the ABA.

Gray expects the Justice Department to issue a notice of the proposed rule-making order sometime this spring, to be followed by a 60-day public comment period. However, when the department will issue its final ruling on the Access Board's recommendations is anyone's guess. The Justice Department answered this question in a posting to its Web site last October.

"It's a common question posed to the Board since its release of new design guidelines for facilities covered by the ADA and ABA. These guidelines will drive updates of the standards used to enforce the ADA and ABA. The standards, which are maintained by a handful of other federal agencies, are what must be followed, not the Access Board's guidelines. The board's guidelines are not enforceable or mandatory in and of themselves, but instead serve as a baseline for updating the standards that are.

"The responsible agencies are updating their ADA or ABA standards on separate tracks and their progress to date is varied. As part of this work, the agencies will indicate when the new standards will take effect."

"We're taking a wait-and-see approach," Gray said.

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